THE PEOPLE &C., RESPONDENT, v. BRYAN HALE, APPELLANT.

93 N.Y.2d 454 (1999).June 10, 1999

99 N.Y. Int. 0100.June 10, 1999

[99 NY Int. 0100]
Decided June 10, 1999 This opinion is uncorrected and subject to revision before publication in the New York Reports.

ROSENBLATT, J.:

As a condition of probation in connection with a
negotiated plea and sentence, defendant consented in writing to
provisions permitting his probation officer to search his person,
his vehicle, and his "place of abode" for illegal drugs and
narcotic implements, during the period of probation. Claimingthat his consent is legally inoperative, defendant asserts that
the search provision is violative of his constitutional and
statutory rights. We disagree, and hold that the provision
served as a lawful basis for the seizure of evidence resulting in
the charges on appeal.

Defendant was initially convicted of Criminally
Negligent Homicide (a class E felony under Penal Law § 125.10)
and Operation of a Vessel While Under the Influence of Alcohol or
Drugs (an offense under Navigation Law § 49a[2]) for having
caused the death of a young woman who was swimming when he struck
her with his motor boat, which he operated while he was impaired.
Considering that the homicide conviction carried a potential
maximum of four years imprisonment, the prosecution, the
defendant, and the court agreed to a disposition by which the
defendant would plead guilty, and the court would impose a
sentence of probation with stringent supervision. For his part,
and in order to obtain the benefits of the negotiated plea and
sentence, defendant signed the terms of probation and waived his
right to appeal. The terms included mandatory drug testing and
drug treatment when ordered by the Probation Department. It also
included the provision at issue before us:

"That you permit search of your vehicle
and place of abode where such place of
abode is legally under your control, and
seizure of any narcotic implements
and/or illegal drugs found, such search
to be conducted by a Probation Officer
or a Probation Officer and his agent."

There was evidence at the suppression hearing that
after defendant had been on probation for several days, his
probation officer reviewed the terms of probation with him,
including the provision at issue, as well as defendant's
obligation to provide urine samples to detect controlled
substances. Over the next several months, defendant tested
positively for drugs on four occasions. The probation officer
intermittently warned defendant that these results could lead to
a violation of probation. He also visited defendant, and
increased defendant's drug counseling sessions, but eventually
concluded that defendant would have to continue his probation in
an inpatient program for cocaine abuse, and told him so.

Shortly thereafter, approximately ten months into the
probation term, the probation officer received a call from the
mother of the woman whose death defendant had caused. She told
the probation officer that defendant was selling drugs out of his
home and that she knew this because her son had bought drugs from
him. Based on all of the circumstances and on the strength of
the abovequoted condition of probation, the probation officer
accompanied by the defendant
[n.1]
and by police officers, entereddefendant's house. In the ensuing search, the authorities
discovered rifles, shotguns, illicit drugs, and a scale,
resulting in defendant's indictment for the instant drug and
weapon charges.

Defendant moved to suppress the evidence, contending
that in the absence of a search warrant, exigent circumstances,
or a voluntary, contemporaneous consent, a probationer may be
searched only if a court has issued a CPL 410.50(3) search order.
He claims that notwithstanding the consentsearch provision, the
search in issue violated his constitutional and statutory rights.
After a hearing, Supreme Court agreed and granted defendant's
motion to suppress. The Appellate Division reversed the
suppression order. A Judge of this Court granted leave to appeal
and we now affirm.

We begin with the premise that a probationer's home is
protected by the constitutional requirement that searches be
reasonable ( see, US Const 4th Amend; NY Const, art I, § 12; see
also, Griffin v Wisconsin, 483 US 868, 873; People v Jackson, 46 NY2d 171, 177). It all comes down to what is "reasonable" under
the circumstances, bearing in mind that the reasonableness of a
search is measured by, among other things, the relative privacy
expectation and entitlement of the person to be searched. For
example, a defendant on probation does not stand in the sameconstitutional shoes as someone entirely free of judicial
supervision and control. At one extreme, a person who has just
been lawfully placed under arrest for armed robbery has an
expectation of privacy vastly inferior to a lawabiding citizen
who is enjoying a quiet evening at home. A defendant on
probation is at neither extreme, but sits part way along the
constitutional spectrum.

Griffin v Wisconsin (483 US 868) takes us part way
toward resolving the issue before us. It establishes that under
Fourth Amendment law as applied to probation searches the
Constitution does not call for standard adherence to the usual
warrant and probable cause requirements. In Griffin the Supreme
Court pointed out that probationary status  which, like
parole,
[n.2]
involves conditional as opposed to absolute liberty 
falls under a "special needs" category that may justify
departures from the customary constitutional standards that apply
in other settings (483 US at 873874).

The Griffin Court, however, did not simply dispense
with the warrant requirement and let it go at that. The Court
recognized, as this Court did in People v Jackson (46 NY2d 171),that a probationer loses some privacy expectations and some part
of the protections of the Fourth Amendment, but not all of both.
In Griffin, the warrantless probation search was conducted
pursuant to a probation regulation promulgated under the
Wisconsin State Administrative Code that satisfied the Fourth
Amendment's reasonableness requirement (483 US 873).
[n.3]
In the
case before us the search was not conducted pursuant to a State
regulation but under a provision which, we hold, carries as much
if not more constitutional weight: a courtordered probationary
condition, based on a negotiated sentence, and the written,
counseled consent of the probationer.
[n.4]

We agree with this line of authority insofar as the
courtordered provision and consent were circumscribed to
specified types of searches by probation officers acting within
the scope of their supervisory duty, and in the context of the
probationary goal of rehabilitation. In making this
determination, we note that a probationer's status is defined by
a number of considerations that have been developed under
statutory and decisional law. They relate, in the main, to the
mix of freedom and restriction that comprises the condition of
probation.

In New York, as in other jurisdictions, a sentence of
probation is an option among various sentencing alternativesshort of confinement. The probationer, although not physically
confined, remains "in the legal custody of the court" for the
probationary period (CPL 410.50[1]; People v Rodney E., 77 NY2d 672, 675). Probation contemplates and even requires a level of
official supervision substantial enough "to ensure that the
defendant will lead a lawabiding life" (Penal Law § 65.10[1]) or
to assist the probationer toward that goal ( see, Penal Law §
65.10[1]). In keeping with the objective, a sentencing court
will typically include a number of standard, statutorilybased
requirements of probation relating to treatment, employment,
restitution, affiliations, family obligations, community service,
or other concerns. This statutory list (Penal Law § 65.10[2][ak]) does not purport to be complete, nor must every requirement
be imposed in every case ( see, generally, Donnino, Practice
Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art
65, at 300307). The conditions and requirements are to be
tailored to suit the probationer, and for that reason Penal Law §
65.10(2)(l) empowers the sentencing court to require that the
probationer "[s]atisfy any other conditions reasonably related to
his rehabilitation."

In reviewing the thrust of the probationary sentence
before us, we readily conclude that the court concentrated on the
statutory goal that the conditions be fundamentally
rehabilitative ( People v McNair, 87 NY2d 772, 774; People v
Letterlough, 86 NY2d 259, 265), and imposed them accordingly. The condition in dispute was calculatedly included among the
terms of probation because all parties were ostensibly seeking
the same objective: that defendant refrain from abusing drugs.
In addition to the standard conditions set forth under Penal Law § 65.10(2)(a) through (k) the court individualized defendant's
probationary plan to comport with the nature of the original
conviction and what it considered appropriate to further
defendant's rehabilitative prospects, given his background,
history, and proclivities. Among the additional conditions, the
court ordered defendant to perform community service, to undergo
drug testing when directed by the probation department, and to
enter a drug treatment facility, if warranted. Defendant,
represented by counsel, signed both the standard and the
additional terms, attesting that he understood them and would
abide by them.

These conditions are not punitive or misdirected.
Considering that the program was designed to keep defendant free
of drugs, one way to encourage him to do so was to hold out the
possibility that he would be checked up on, and stood to be
incarcerated if he betrayed the terms of his negotiated
probationary status. The additional conditions were individually
tailored in relation to the offense, and were reasonably related
to defendant's rehabilitation ( see, e.g., United States v
Germosen, 139 F3d 120, 131132 [2d Cir 1998], cert denied
__ US __, 119 S Ct 829; United States v Phaneuf, 91 F3d 255, 262264 [1st Cir 1996]; United States v Wesley, 81 F3d 482 [4th Cir
1996]; United States v Thurlow, 44 F3d 46 [1st Cir 1995], cert
denied514 US 1121; United States v Sharp, 931 F2d 1310 [8th Cir
1991]; Owens v Kelley, 681 F2d 1362 [11th Cir 1982]). As such,
they provided an appropriate basis for the search and seizure of
the contraband ( see, e.g., United States v Vincent, 167 F3d 428
[8th Cir 1999]; United States v Ooley, 116 F3d 370, 372 [9th Cir
1997], cert denied __ US __, 118 S Ct 2391; Nebraska v Morgan,
206 Neb 818, 295 NW2d 285 [1980]; North Dakota v Perbix, 331 NW2d
14 [North Dakota 1983]). Moreover, the probation officer,
although accompanied by the police, initiated and undertook the
search by virtue of his own responsibility for and relationship
with the defendant, as his supervisor, and was motivated by his
duty to monitor the terms of defendant's probation and
rehabilitation ( see, United States v Ooley, 116 F3d 370 [9th Cir
1997], cert denied __ US __, 118 S Ct 2391).

Defendant argues that this Court's decision in People v
Jackson (46 NY2d 171) supports his claim that the search violated
his constitutional and statutory rights. Jackson, however,
involved a summary search by a probation officer acting solely on
an anonymous phone call. There was no courtordered search
condition of probation, let alone defendant's consent to one.
The Court found that the authorities summarily conducted "a
wholesale search of the defendant, his locker and his automobile"
(46 NY2d at 175176), even though CPL 410.50(3) was available.

CPL 410.50(3) reads as follows:

"Search order.
If at any time during
the period of probation the court has
reasonable cause to believe that the
defendant has violated a condition of
the sentence, it may issue a search
order. Such order must be directed to a
probation officer and may authorize such
officer to search the person of the
defendant and/or any premises in which
he resides or any real or personal
property which he owns or which is in
his possession."

Although this section authorizes courtordered
searches, there is nothing in it or in Jackson to support
defendant's assertion that CPL 410.50(3) preempts the lawfulness
of the search in issue. Indeed, pursuant to the very next
section, CPL 410.50(4), a probation officer may take a
probationer into custody and conduct a personal search when the
probation officer has reasonable cause to believe that the
probationer has violated a condition of the sentence. The
section contemplates that the probation officer may do so without
any court order or any prior courtimposed condition of
probation. We conclude, therefore, that the constitutionality of
a search provision ordered by a court in a sentence of probation
as part of a negotiated agreement by the probationer was not
defeated by the availability of CPL 410.50(3).

In his argument before this Court defendant contends
that his consent may not be based on his having signed the
conditions of probation, and that any such consent was theproduct of coercion. We disagree with this contention to the
extent that defendant claims that his consent is invalid as a
matter of law.
[n.5]
In order to obtain the benefits of a favorable
sentence, defendant negotiated an agreement that assured his
avoidance of a prison term. He had no "right" to a sentence of
probation ( People v Oskroba, 305 NY 113, 118; People v Berkly,
152 AD2d 788, 790) and he sought the probation sentence, along
with its obligations and its obvious benefits, as a far more
desirable disposition than the potential alternative.

Defendant argues that his consent, although the result
of a negotiated plea, was a manifest "fiction" and not truly
voluntary because, he claims, he did not have a realistic choice
in the matter. The answer to this argument is simply that any
defendant who, for example, bargains for a tenyear sentence to
avoid a possibly longer one may be acting out of a sense of
constraint, yet voluntarily "offers" to surrender a decade of
liberty. A defendant's offer to surrender a measure of liberty
or privacy cannot be considered voluntary in every sense of the
word, but it is not involuntary as a matter of law. We recognize
that negotiated sentences by their very nature involve
inducements, relinquishments, and constraints, and are routinelycharacterized not only as voluntary but also as knowing and
intelligent.

In the case before us, the defendant negotiated an
arrangement by which he would be able to remain at liberty in
exchange for a surrender of some of his rights, including a
diminished expectation of privacy. Under these circumstances we
reject defendant's argument that he was coerced as a matter of
law.

Notes

1
At the suppression hearing there was evidence that
defendant did not object to the search when it was conducted.
That acquiescence, however, was ostensibly based on his earlier,
written consent to the terms of probation. The People do not
rely on defendant's acquiescence at the scene as justification
for the search. Accordingly, and because it is not relevant to
the issues before us, we need not and do not attempt tocharacterize defendant's reaction to the search at the time it
was conducted.

2
Even though parolees are often said to occupy a position
that for constitutional purposes is like probationers ( see, e.g.,
Griffin v Wisconsin, 483 US 868, 874; People v Dyla, 142 AD2d
423,440; United States v McFarland, 116 F3d 316 [8th Cir 1997],
cert denied __ US __, 118 S Ct 394), we limit our analysis to
probationers, and do not attempt to demarcate whatever
distinctions may exist between the two classifications.

3
Before Griffin was decided there had been considerable
debate over the warrant requirement relative to probationers
( see, e.g., Note, Fourth Amendment Limitations on Probation and
Parole Supervision, 1976 Duke LJ 71 [1976]; Williamson, Search
and Seizure Rights of Parolees and Probationers in the Ninth
Circuit, 44 Ford L Rev 617 [1975]; Note, Striking the Balance
Between Privacy and Supervision: The Fourth Amendment and Parole
and Probation Officer Searches of Parolees and Probationers, 51
NYU L Rev 800 [1976]; White, The Fourth Amendment Rights of
Parolees and Probationers, 31 U Pitt L Rev 167 [1969]). In
deciding that the "operation of a probation system . . . presents
'special needs' beyond normal law enforcement that may justify
departures from the usual warrant and probablecause
requirements," the Griffin court (483 US 868, 873874) addressed
some but not all of the issues raised in this body of
scholarship.

4
Considering that the case before us is based upon a consent
provision we do not undertake to decide whether, when and to what
extent a sentencing court may unilaterally impose search
conditions in a sentence of probation.

5
To the extent that he rests his coercion claim on a factual
basis, we note that he did not raise this issue below. At no
point did he timely claim that his consent was the product of
confusion, mistake or any of the other factual assertions that
could undermine the knowing and intelligent entry of a guilty
plea. Such an argument is therefore unpreserved for our review.